Governor Christie Conditionally Vetoes Social Networking Bill; Legislature Responds

Written By Brett M. Pugach, Esq., and Jordan S. Hollander

The New Jersey Legislature recently passed a social media law, also known as the “Facebook Bill”.  On May 7, 2013, the Facebook Bill was conditionally vetoed by Governor Christie.  The Facebook Bill would have prohibited employers from requiring or requesting current or prospective employees to disclose their user name or password or otherwise provide the employer with access to a personal account on a social networking site.  Such accounts did not include those used for business purposes of the employer.

In addition, employers would have been prohibited from requiring or requesting that a current or prospective employee disclose whether he/she has a personal account on a social networking site.  Such a prohibition would have been the first of its kind.  This prohibition has been particularly controversial for certain employers due to its potential implications with respect to social media outlets focused on business connections such as LinkedIn.  However, the Facebook Bill does not appear to prevent employers from conducting research online on their own.  The Facebook Bill also contained controversial provisions with respect to the potential liability of employers for violations and civil penalties of up to $1,000 for the first offense and $2,500 for additional violations.

While Governor Christie thought the bill was “well-intentioned,” he issued a conditional veto due to apprehensions over balancing privacy concerns and an employer’s need “to hire appropriate personnel, manage its operations, and safeguard its business assets and proprietary information.”  For example, under the vetoed bill, an employer interviewing a candidate for a marketing job would have been prohibited from asking that candidate about their use of social networking to gauge their technological skills and savvy.

In the accompanying conditional veto message, the Governor left the civil penalties intact but suggested that provisions allowing employees to sue for violations of the law and that bar employers from asking about the existence of social media accounts be struck from the law.  In addition, the Governor proposed adding additional exceptions allowing employers to investigate work-related employee misconduct or the unauthorized transfer of confidential company information to a private account and allowing employers to view, access, or utilize information about a current or prospective employee that can be obtained in the public domain.

After the conditional veto, the bill was sent back to the Legislature.  The State Assembly incorporated the Governor’s changes, and on May 20, 2013, approved the bill, known as A2878, by a vote of 74-0 to send it back to the Governor’s desk.  However, before Governor Christie may act on the bill, it must also be approved by the State Senate.

Employers should note that the Facebook Bill, as amended and if approved by the State Senate and signed by the Governor, would not take effect until the first day of the fourth month after it is enacted.  Employers are encouraged to consult with an attorney to review social media related policies and/or draft a social media hiring policy.

If you need advice with respect to this legislation or assistance regarding an existing social media policy or developing a new social media policy, please contact Joseph M. Hannon, Esq., jhannon@nullgenovaburns.com or Brett M. Pugach, Esq., bpugach@nullgenovaburns.com, in the Labor Law Practice Group.

NLRB Sets the Example for Sound Social Media Policies

The National Labor Relations Board (“NLRB”) recently issued its Third Report on social media cases. In doing so, it emphasized the importance of clarifying permissible and prohibited conduct through the use of examples. By using examples in this context, employers can avoid situations where an employee can reasonably interpret the social media policy as restricting Section 7 rights under the National Labor Relations Act (“NLRA”) which protects protected concerted activity when employees communicate with one another to discuss the terms and conditions of their employment. Moreover, providing examples can prevent a social media policy from being found to be overbroad.

In its review of social media cases, the NLRB Third Report cites many instances where policies were found to violate the NLRA because they did not include clarifying examples. For instance, a policy that instructed employees to not release confidential information regarding guests, team members or the company was impermissible because there was no limiting language or context to assure employees that Section 7 rights were not restricted. In addition, a policy instructing employees to ensure that posts were accurate and not misleading was overbroad because it could be interpreted to prohibit employee discussions about working conditions and did not provide examples of the prohibited conduct.

However, the NLRB Third Report pinpoints a few instances where policies that were otherwise overbroad were nevertheless found to be lawful due to the inclusion of clarifying examples. A policy prohibiting harassment, bullying, discrimination, and retaliation between co-workers in the workplace and online (even if it was after work hours) was found to be permissible because a list of prohibited conduct was provided, and included only plainly egregious activity. Finally, the NLRB found that Wal-Mart’s social media policy was valid in its entirety, and attached the entire policy to the report as an “example” of how “examples” can be used effectively to prevent a social media policy from being overbroad or interpreted as infringing upon Section 7 rights under the NLRA.

If you need assistance regarding an existing social media policy or with developing a new social media policy, please contact Joseph M. Hannon, Esq., jhannon@nullgenovaburns.com or Brett M. Pugach, Esq., bpugach@nullgenovaburns.com, in the Labor Law Practice Group.